87 S.E. 133 | N.C. | 1915
Civil action. This action was brought by the plaintiffs against the defendant and the city of Winston-Salem to recover damages for injury to their lot in said city, caused by the construction of a bridge or a viaduct and the approaches thereto, along Bank Street in said city, and between Liberty and Elm streets. It appears in the case that the defendant railroad company had laid a part of its track across Bank Street at grade, and, desiring to raise the grade of the street, and for that *456 purpose to build the bridge in question and construct the approaches thereto, it obtained permission from the city to do so, upon giving a bond to indemnify it against the damages. The railroad company then proceeded with the work, constructed the bridge, and raised the level of the street in such a way that ingress and egress to the plaintiff's lot was so obstructed as to greatly impair the value of the property. This was the allegation of the plaintiffs, and there was proof to sustain it, though it was denied by the defendant, which alleged that the work was done by the permission of the city and under its authority, and was also carefully performed according to a correct plan. The case was submitted to the jury upon the following issue:
Has the plaintiffs' property been damaged by the erection of the bridge along Bank Street, as alleged, and if so, in what amount? A. Yes; $2,250.
Judgment was rendered upon the verdict and the plaintiffs appealed, and reserved several exceptions to the rulings and judgment of the court.
After stating the case: It is apparent from the entire record in this case that the railroad company in constructing the bridge and its approaches was acting in its own behalf and for its own use and benefit, although it had obtained the permission of the city to do the work, and the same was done with its consent, but the work was not done by the city in the exercise of its governmental function, through the defendant, so as to protect the latter from liability except for (391) negligence. It is well settled with us, and it is very generally held in other jurisdictions, that, unless otherwise provided by the Constitution or statute, the owner of property abutting on a street cannot recover for any damage to his property caused by a change in the grade of the street under proper municipal authority, where there is no negligence in the method or manner of doing the work. Meares v. Wilmington,
In Hoyle v. Hickory,
This principle, we stated in the same case, has been recognized and enforced since the days of Chief Justice Kenyon and Justice Buller. Mfrs.v. Meredith, 4 Durnf. East, 794, 796; Sutton v. Clark, 6 Taunt., 28;Boulton v. Crowther, 2 Barn. Cres., 703. The doctrine is almost universally accepted by the State courts of this country. Cooley Const. Lim., 542, and notes. It was affirmed in Transportation Co. v. Chicago,
As stated by the Court in the case last cited, it may be thus summarized: The doctrine, however it may at times appear to be at variance with natural justice, rests upon the soundest legal reason. The State holds its highways in trust for the public. Improvements made by its direction or by its authority are its acts, and the ultimate responsibility, of course, should rest upon it. But it is the prerogative of the State to be exempt from coercion by suit, except by its own consent. This prerogative would amount to nothing if it did not protect the agents for improving highways which the State is compelled to employ. This principle of the law is usually made to rest upon the theory that any and all changes of this character in the streets of the town are supposed to have been contemplated, and, therefore, provided for in advance of the improvement and at the time of the original dedication of the street, and any abutting owner acquires and improves his property with full notice that such changes may be made from time to time. (392) Nichols Power of Em. Dom., secs. 81, 82 and 83; Lewis Em. Dom. (3 Ed.) sec. 134.
Nichols Power of Em. Dom., secs. 81, 82 and 83; Lewis Em. Dom. (3 Ed.) sec. 134, supra, says:
"When a highway is raised or lowered in grade so that it may be made safer or more convenient for traveling, the owner in not entitled to compensation. . . . The true reason for the rule is that when a highway is laid out the estimate taken includes the right to grade and construct then, or at any future time, in such a manner as the public authorities may deem conducive to safe and convenient traveling." And Lewis Em. Dom., supra, says: "When a street or highway is laid out compensation is given once for all, not only for the land taken, but for damages which may, at any time, be occasioned by adapting the surface of the street to the public needs."
This power to further grade and improve the streets of the town is a continuing one, and may be exercised in the legal discretion of the municipal government whenever the public may require it, as will appear *458
from the above cited authorities, and also 1 Elliott Streets and Roads (3 Ed.), sec. 551. This discretion, although it may be a legal one, cannot be interfered with by the courts, except in case of manifest and gross abuse, or when it would be arbitrary and oppressive. Brodnax v. Groom,
These principles have been very recently discussed by us in Wood v.Land Co.,
The principle is well expressed in Reining v. R. R.,
It will be observed that, in this case, there was but one issue submitted to the jury, and that related only to the question of damages and the amount which plaintiffs were entitled to recover. There was no issue involving the question as to the authority of the railroad company to do this work and be immune from liability for damages, unless it was done negligently; but even if such an issue had been submitted, it is so very clear that it possessed no such right as to practically (394) eliminate that question from the case, and, upon the issue as to damages, the charge of the court was entirely free from error. The plaintiffs were entitled to recover for the diminution in value of property which was caused by the defendant's wrongful act, or by the appropriation of their property to its use, and in respect to works of this kind, which are of a lasting nature, the plaintiffs were entitled to recover permanent damages. Lloyd v. Venable,
There is a question of evidence in the case, but we think his Honor ruled correctly in regard to it. The plaintiffs did not attempt to show substantively by the cross-examination of the witness what was the value of their lot as compared with his, but the question was asked, as to what he had realized from the sale of his property, for the purpose *460
of testing the value of his opinion, which had been before elicited by the defendant as to the value of the plaintiffs' lot, which he had estimated at a very low figure, there being, in our opinion, some evidence as to the similarity of the two lots, and their condition, surroundings and value, and at least enough to permit a cross-examination of the witness upon the subject. We do not think that the ruling of the court violated the principle as stated in Warren v. Makely,
Before closing this opinion we will call attention to the case of WasteCo. v. R. R., supra, as containing a very full discussion of the leading questions in this case, as applied to a state of facts very similar to those which are presented in this record.
After a careful analysis of the case, and a thorough consideration of the points presented by the learned counsel for the defendant, we are convinced that there has been no error committed during the trial.
No error.
Cited: Mason v. Durham,
